H
Herr Heckler Koch
Guest
https://www.eff.org/deeplinks/2011/11/year-smartphone
Hanni Fakhoury said:The Fourth Amendment's prohibition against warrantless searches and seizures applies to cell phones, and EFF has long advocated for the police to come back with a warrant before searching a cell phone. But in January 2011, the California Supreme Court ruled in People v. Diaz (PDF), that the police were authorized to search any person's cell phone, without a warrant, after they had been arrested under the narrow "search incident to arrest" exception to the Fourth Amendment, that permits a brief search in the area immediately around a person for the purposes of officer safety and protection of evidence from immediate destruction.
We predicted Diaz would create routine privacy violations, and worried that officers could use a pretextual arrest to casually browse the data on a person's cell phone for any reason, even if that person is never charged with a crime. We weren't the only ones worried. In April, California Senator Mark Leno introduced a bill intending to revserse Diaz and require the police to obtain a warrant before searching a cell phone incident to arrest. Sponsored by the ACLU of Northern California, and supported by an EFF Action Alert, the bill passed through both houses of the California legislature before being vetoed by Governor Jerry Brown. As Governor Brown explained it (PDF), "Courts are better suited to resolve the complex and case specific issues relating to constitutional search-and-seizure protections." Yet, courts across the country have been struggling to deal with this issue. The Ohio Supreme Court, interpreting the same "constitutional search-and-seizure" protections as the California Supreme Court in Diaz, reached the opposite conclusion, prohibiting warrantless cell phone searches. Faced with this conflict of opinion, the United States Supreme Court, a week before Governor Brown's veto message, declined to review the Diaz opinion.